In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-25-00262-CR No. 02-25-00263-CR ___________________________
LANCE EARL DARDEN, Appellant
V.
THE STATE OF TEXAS
On Appeal from Criminal District Court No. 2 Tarrant County, Texas Trial Court Nos. 1827769, 1840558
Before Sudderth, C.J.; Wallach and Walker, JJ. Memorandum Opinion by Chief Justice Sudderth MEMORANDUM OPINION
Appellant Lance Earl Darden pleaded guilty in two cases to assault on a pregnant
person, a third-degree felony, in exchange for six years’ deferred-adjudication
community supervision and a $600 fine. See Tex. Penal Code Ann. § 22.01(b)(8); see also
id. § 12.34 (stating third-degree felony punishment is 2–10 years’ confinement and up
to a $10,000 fine).
Less than a year later, the State moved to proceed to adjudication in each case,
alleging six community supervision violations but abandoning four of the allegations at
the revocation hearing. Darden pleaded “not true” to the remaining two allegations,
but the trial court found both true, revoked his community supervision in each case,
and assessed his punishment at eight years’ confinement in each case, to be served
concurrently. The trial court did not pronounce any fines at sentencing but made a
special finding in the judgment in trial court cause number 1827769 (appellate cause
number 02-25-00262-CR) for a $595 fine and ordered it to be credited for time served.
Darden has appealed both of the trial court’s judgments.
In each case, Darden’s appellate counsel has filed a motion to withdraw as
counsel and a supporting brief under Anders v. California,1 representing that he has
reviewed the appellate record and that it “reveals no ground that could be argued non-
frivolously on appeal.” These filings meet the requirements of Anders by presenting a
386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400 (1967). 1
2 professional evaluation of the record demonstrating why there are no arguable grounds
for relief. See In re Schulman, 252 S.W.3d 403, 406–12 (Tex. Crim. App. 2008) (orig.
proceeding). Counsel has also complied with the requirements of Kelly v. State, 436
S.W.3d 313, 319–20 (Tex. Crim. App. 2014), by informing Darden by certified mail of
his right to file a pro se response and how to obtain a copy of the appellate record, his
right to file a petition for discretionary review in the Court of Criminal Appeals should
this court affirm the trial court’s judgments, and the deadline to file a petition for
discretionary review.
However, the record reflects that after the trial court appointed appellate counsel
for him, Darden opted to retain his own appellate counsel. We have previously
addressed this type of situation—when retained counsel files an Anders brief and motion
to withdraw—observing,
An attorney, whether appointed or retained, is under an ethical obligation to refuse to pursue a frivolous appeal. See McCoy v. Court of Appeals of Wis., 486 U.S. 429, 436–37, 108 S. Ct. 1895, 1900–01 (1988). “The procedural safeguards of Anders and its progeny do not apply to retained attorneys[,] and we do not have the same supervisory role in guaranteeing the attorney’s representation.” Nguyen v. State, 11 S.W.3d 376, 379 (Tex. App.—Houston [14th Dist.] 2000, no pet.). “This is so because by securing retained counsel, the appellant has received all that Anders was designed to ensure.” Lopez v. State, 283 S.W.3d 479, 480 (Tex. App.— Texarkana 2009, no pet.); see Pena v. State, 932 S.W.2d 31, 33 (Tex. App.— El Paso 1995, no pet.). Rather, a retained attorney, on determining that an appeal is frivolous, must inform the court that the appeal has no merit and seek leave to withdraw by filing a motion complying with rule of appellate procedure 6.5. See Pena, 932 S.W.2d at 32; see also Tex. R. App. P. 6.5; Mays v. State, 904 S.W.2d 920, 923 n.1 (Tex. App.—Fort Worth 1995, no pet.). We must then determine whether the motion to withdraw satisfies the requirements of rule 6.5. See Pena, 932 S.W.2d at 33.
3 Edwards v. State, Nos. 02-16-00370-CR, 02-16-00371-CR, 02-16-00377-CR, 2017 WL
4819377, at *2 (Tex. App.—Fort Worth Oct. 26, 2017, no pet.) (mem. op., not
designated for publication). 2
Darden has filed a pro se response to his retained counsel’s motion, and—as in
Edwards—we have performed an independent review of the record. Neither reveals
any arguable grounds to support the appeals. 3 See id. at *3; see also Stafford v. State, 813
S.W.2d 503, 511 (Tex. Crim. App. 1991) (requiring an independent review of the record
when an Anders is filed).
2 In Edwards, we concluded that counsel’s motion to withdraw did not meet Rule 6.5’s requirements because it did not contain the deadline for the appellant to file a pro se brief, the appellant’s last known address and phone number, a statement that a copy of the motion had been sent to the appellant, or a statement that the appellant had been notified in writing of his right to object to the motion. 2017 WL 4819377, at *2 (citing Tex. R. App. P. 6.5(a)). The certificate of service also failed to state that the motion had been delivered to the appellant in person or by certified and first-class mail at his last known address. Id. (citing Tex. R. App. P. 6.5(b)). We nonetheless affirmed the trial court’s judgments because this court had sent to the appellant notice that his retained counsel had filed a motion to withdraw and had informed the appellant of his deadline to file a response to his counsel’s motion; the appellant never filed a pro se response or notified the court that he intended to retain new counsel; and, after an independent review of the record, we found no arguable issues for reversal. Id. at *3. Like the appellate counsel in Edwards, retained counsel here has not complied with all of Rule 6.5’s requirements. See generally Tex. R. App. P. 6.5(a), (b). 3 The State has not filed a response but agreed with Darden’s retained counsel in a letter filed with this court that Darden “has no meritorious grounds upon which to advance an appeal in this case.”
4 In his pro se response, Darden complains that when he went before the trial
court, he “wasn’t aware that [he] would get more time” but rather was “only aware that
[he] was going in front of the [j]udge to try and get reinstated” because the complainant
was going to testify that he had actually been innocent. However, his deferred-
adjudication plea bargains’ written plea admonishments explained that the range of
punishment for assault of a pregnant person was “[i]mprisonment for a term of not
more than 10 years or less than 2 years” and contained his signed judicial confession in
which he stated that he understood “the applicable ranges of punishment.”
Further, at the hearing on the State’s motions to proceed to adjudication, the
prosecutor asked Darden if the complainant was there to testify for him and if Darden
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In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-25-00262-CR No. 02-25-00263-CR ___________________________
LANCE EARL DARDEN, Appellant
V.
THE STATE OF TEXAS
On Appeal from Criminal District Court No. 2 Tarrant County, Texas Trial Court Nos. 1827769, 1840558
Before Sudderth, C.J.; Wallach and Walker, JJ. Memorandum Opinion by Chief Justice Sudderth MEMORANDUM OPINION
Appellant Lance Earl Darden pleaded guilty in two cases to assault on a pregnant
person, a third-degree felony, in exchange for six years’ deferred-adjudication
community supervision and a $600 fine. See Tex. Penal Code Ann. § 22.01(b)(8); see also
id. § 12.34 (stating third-degree felony punishment is 2–10 years’ confinement and up
to a $10,000 fine).
Less than a year later, the State moved to proceed to adjudication in each case,
alleging six community supervision violations but abandoning four of the allegations at
the revocation hearing. Darden pleaded “not true” to the remaining two allegations,
but the trial court found both true, revoked his community supervision in each case,
and assessed his punishment at eight years’ confinement in each case, to be served
concurrently. The trial court did not pronounce any fines at sentencing but made a
special finding in the judgment in trial court cause number 1827769 (appellate cause
number 02-25-00262-CR) for a $595 fine and ordered it to be credited for time served.
Darden has appealed both of the trial court’s judgments.
In each case, Darden’s appellate counsel has filed a motion to withdraw as
counsel and a supporting brief under Anders v. California,1 representing that he has
reviewed the appellate record and that it “reveals no ground that could be argued non-
frivolously on appeal.” These filings meet the requirements of Anders by presenting a
386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400 (1967). 1
2 professional evaluation of the record demonstrating why there are no arguable grounds
for relief. See In re Schulman, 252 S.W.3d 403, 406–12 (Tex. Crim. App. 2008) (orig.
proceeding). Counsel has also complied with the requirements of Kelly v. State, 436
S.W.3d 313, 319–20 (Tex. Crim. App. 2014), by informing Darden by certified mail of
his right to file a pro se response and how to obtain a copy of the appellate record, his
right to file a petition for discretionary review in the Court of Criminal Appeals should
this court affirm the trial court’s judgments, and the deadline to file a petition for
discretionary review.
However, the record reflects that after the trial court appointed appellate counsel
for him, Darden opted to retain his own appellate counsel. We have previously
addressed this type of situation—when retained counsel files an Anders brief and motion
to withdraw—observing,
An attorney, whether appointed or retained, is under an ethical obligation to refuse to pursue a frivolous appeal. See McCoy v. Court of Appeals of Wis., 486 U.S. 429, 436–37, 108 S. Ct. 1895, 1900–01 (1988). “The procedural safeguards of Anders and its progeny do not apply to retained attorneys[,] and we do not have the same supervisory role in guaranteeing the attorney’s representation.” Nguyen v. State, 11 S.W.3d 376, 379 (Tex. App.—Houston [14th Dist.] 2000, no pet.). “This is so because by securing retained counsel, the appellant has received all that Anders was designed to ensure.” Lopez v. State, 283 S.W.3d 479, 480 (Tex. App.— Texarkana 2009, no pet.); see Pena v. State, 932 S.W.2d 31, 33 (Tex. App.— El Paso 1995, no pet.). Rather, a retained attorney, on determining that an appeal is frivolous, must inform the court that the appeal has no merit and seek leave to withdraw by filing a motion complying with rule of appellate procedure 6.5. See Pena, 932 S.W.2d at 32; see also Tex. R. App. P. 6.5; Mays v. State, 904 S.W.2d 920, 923 n.1 (Tex. App.—Fort Worth 1995, no pet.). We must then determine whether the motion to withdraw satisfies the requirements of rule 6.5. See Pena, 932 S.W.2d at 33.
3 Edwards v. State, Nos. 02-16-00370-CR, 02-16-00371-CR, 02-16-00377-CR, 2017 WL
4819377, at *2 (Tex. App.—Fort Worth Oct. 26, 2017, no pet.) (mem. op., not
designated for publication). 2
Darden has filed a pro se response to his retained counsel’s motion, and—as in
Edwards—we have performed an independent review of the record. Neither reveals
any arguable grounds to support the appeals. 3 See id. at *3; see also Stafford v. State, 813
S.W.2d 503, 511 (Tex. Crim. App. 1991) (requiring an independent review of the record
when an Anders is filed).
2 In Edwards, we concluded that counsel’s motion to withdraw did not meet Rule 6.5’s requirements because it did not contain the deadline for the appellant to file a pro se brief, the appellant’s last known address and phone number, a statement that a copy of the motion had been sent to the appellant, or a statement that the appellant had been notified in writing of his right to object to the motion. 2017 WL 4819377, at *2 (citing Tex. R. App. P. 6.5(a)). The certificate of service also failed to state that the motion had been delivered to the appellant in person or by certified and first-class mail at his last known address. Id. (citing Tex. R. App. P. 6.5(b)). We nonetheless affirmed the trial court’s judgments because this court had sent to the appellant notice that his retained counsel had filed a motion to withdraw and had informed the appellant of his deadline to file a response to his counsel’s motion; the appellant never filed a pro se response or notified the court that he intended to retain new counsel; and, after an independent review of the record, we found no arguable issues for reversal. Id. at *3. Like the appellate counsel in Edwards, retained counsel here has not complied with all of Rule 6.5’s requirements. See generally Tex. R. App. P. 6.5(a), (b). 3 The State has not filed a response but agreed with Darden’s retained counsel in a letter filed with this court that Darden “has no meritorious grounds upon which to advance an appeal in this case.”
4 In his pro se response, Darden complains that when he went before the trial
court, he “wasn’t aware that [he] would get more time” but rather was “only aware that
[he] was going in front of the [j]udge to try and get reinstated” because the complainant
was going to testify that he had actually been innocent. However, his deferred-
adjudication plea bargains’ written plea admonishments explained that the range of
punishment for assault of a pregnant person was “[i]mprisonment for a term of not
more than 10 years or less than 2 years” and contained his signed judicial confession in
which he stated that he understood “the applicable ranges of punishment.”
Further, at the hearing on the State’s motions to proceed to adjudication, the
prosecutor asked Darden if the complainant was there to testify for him and if Darden
had conversed with her about saying that “none of this happened.” Darden agreed that
they had, even though he acknowledged that “[i]t did happen.” Ultimately, Darden
opted not to call the complainant to testify, asked the trial court to consider reinstating
his probation, and acknowledged that he understood that the trial court could reinstate
him or could sentence him to a term of confinement.
Darden also appears to complain about the effectiveness of his counsel at the
hearing, but the record does not support his contentions or reflect the reasoning
supporting counsel’s alleged actions or inactions. Cf. Menefield v. State, 363 S.W.3d 591,
593 (Tex. Crim. App. 2012) (explaining that trial counsel “should ordinarily be afforded
an opportunity to explain his actions before being denounced as ineffective”). The
remainder of his complaints appear pertain to the effectiveness of his trial counsel
5 during his original deferred-adjudication plea bargain and thus are not preserved in this
direct appeal. See generally Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim. App. 1999);
Manuel v. State, 994 S.W.2d 658, 662 (Tex. Crim. App. 1999); George E. Dix & John M.
Schmolesky, 43B Tex. Prac., Criminal Practice & Procedure § 56:86 (3d ed. 2024)
(explaining that issues relating to the original proceedings that resulted in community
supervision may be raised only in an appeal from the order entered at the end of those
proceedings and not in a subsequent appeal taken after community supervision is
terminated and imprisonment imposed).4
Finally, based on our independent review, except for a minor correction to the
judgment in trial court cause number 1827769, addressed below, we agree that the
appeals are frivolous and without merit; we find nothing in the record that might
arguably support them. See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App.
2005); see also Meza v. State, 206 S.W.3d 684, 685 n.6 (Tex. Crim. App. 2006).
The judgment in trial court cause number 1827769 identified a $595 fine, but it
was not orally pronounced during sentencing. Cf. Anastassov v. State, 664 S.W.3d 815,
823 (Tex. Crim. App. 2022) (“A fine is not a court cost or fee; it is part of the
punishment.”); Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011) (requiring
fines to be orally pronounced in the defendant’s presence). Because this fine was not
4 In addition to his written plea admonishments, Darden signed the certifications of his right of appeal, which stated that the deferred-adjudication orders arose from “a plea-bargain case, and the defendant has NO right of appeal.”
6 orally pronounced when the trial court assessed Darden’s sentence after revoking his
deferred-adjudication community supervision, we delete it from the judgment in trial
court cause number 1827769. See Bray v. State, 179 S.W.3d 725, 730 (Tex. App.—Fort
Worth 2005, no pet.) (en banc).
We deny counsel’s motion to withdraw in each case for failure to comply with
Rule 6.5,5 but we nonetheless affirm the trial court’s judgment in trial court cause
number 1840558 and affirm the trial court’s judgment as corrected in trial court cause
number 1827769 because we discern no arguable issue that could warrant reversal. See
Edwards, 2017 WL 4819377, at *3.
/s/ Bonnie Sudderth
Bonnie Sudderth Chief Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: February 12, 2026
5 Having denied counsel’s motions to withdraw, we order counsel to inform Darden promptly of these cases’ dispositions and to remind him of the availability of discretionary review in the Court of Criminal Appeals. See Edwards, 2017 WL 4819377, at *2 n.6.